JUDGMENT

FAZAL ALI, J.:— This appeal by special leave is directed against a judgment dated June 29, 1974 of the Rajasthan High Court overruling a preliminary objection taken by the accused before the Sessions Judge to the effect that the Sessions Judge, Tonk, was not competent to try the case as the accused Umesh Chandra was a child as contemplated by the provisions of the Rajasthan Children Act, 1970 (hereinafter referred to as the Act) on the date of the alleged occurrence. This Act appears to have been passed by the Rajasthan Legislature but after receiving assent of the President was enforced in various districts from time to time. Under the provisions of the Act any person below the age of 16 (sixteen) would be presumed to be a child and the trial of the delinquent child was to be conducted in accordance with the procedure laid down therein. The objection taken by the appellant was that as he was below the age of 16 at the time of the occurrence on 12-3-1973, he could not be tried by the Additional Sessions judge, Tonk, or the Additional Sessions Judge Jaipur city, to whom the case was transferred on 17-10-73.

2. The Sessions Judge overruled the objection taken by the accused and therefore he filed a revision to the Rajasthan High Court against the order. The High Court after considering the oral and documentary evidence came to the conclusion that the Act was not applicable to the appellant for two reasons - (1) that it was not brought into force in Tonk at the time of the offence, and (2) that it was not proved by the accused that he was below the age of 16 on 12-3-1073. the date of the occurrence. The accused was charged for offences punishable under Ss. 364 and 302 of the Penal Code. Aggrieved by the order of the High Court, the appellant moved this Court in special leave and at the time of granting special leave, this Court directed the High Court to return a finding of fact on the actual date of birth of the accused so that this Court may determine the applicability of the Act to the facts of the present case.

3. The High Court after reappraising the entire evidence-oral and documentary by its order dated 18-11-76 came to a clear finding that the age of Umesh Chandra at the time when the offence was committed was 16 years 5 months and 20 days and that the exact date of birth of the appellant was proved to be 22-9-1956. After the finding of fact called for from the High Court was sent to this Court, the appeal was placed for hearing before us.

4. In support of the appeal, the learned counsel for the appellant has assailed the finding of the High Court - that the age of the appellant was above 16 years - and it was contended that the High Court has based its decision on wholly irrelevant material and has also committed errors of law in appreciating important documentary evidence.

5. Another point that was argued before us was as to the application of the Act to Tonk, where the offence was committed. As, however, the Act has now been enforced in the entire State, this question no longer survives because where a situation contemplated by Sec. 26 of the Act arises, an accused, who is found to be a child, has to be forwarded by the Sessions Court to the Childrens court which can pass appropriate sentence. Where however proceedings against a child are pending before Sessions Judge. Sec. 26 of the Act enjoins a duty on the Court in which the proceeding in respect of the child is pending on the date on which the Act is extended to the area to act in the manner therein prescribed. In this eventuality, the Court is under an obligation to proceed with the trial and record a finding as if the Act does not apply. But after concluding the trial and recording a finding that the child had committed an offence the Court cannot pass any sentence but the Court is under a statutory obligation to forward the child to the Childrens court which shall pass orders in respect of that child in accordance with the provisions of the Act, as if it, h